FRANCIS UCHE AZUBUIKE v. THE STATE
(2019)LCN/13658(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of July, 2019
CA/OW/405C/2018
RATIO
EVIDENCE: CORROBORATION: NATURE
It is the law that evidence in corroboration must be an independent testimony, direct or circumstantial, which confirms in some material particular, not only that an offence has been committed, but that the accused person has committed it. Corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to confirmation of the whole account given in some respect material to the charge. Akinbami Vs State (2017) A FWLR (Pt.897) 2018 at 2036. (Pages 167 to 165 of the Records of Appeal). PER ITA GEORGE MBABA, J.C.A.
COURTS: COURTS NEED TO BE VERY CIRCUMSPECT
The Court is required to be very circumspect, especially where the liberty or life of an accused person is at stake, in coming to its conclusion of finding of guilt of an accused person, especially on the basis of circumstantial evidence. See the case of Theophilus Ajakaiye Vs The State (2014) LPELR ? 24098 CA; (2015)5 WRN 64, where it was held:A Court is never allowed to make a case for any of the parties before it, different from what a party presents to the Court Ayoade Vs Spring Bank Plc (2014) 4 NWLR (Pt.1396)93 at128? The demand for a judge to be circumspect and act within the confines of the strict rules of law in the appraisal and application of the evidence and the law to reach his conclusion, becomes much more in a criminal trial whereof the liberty and/or life of the Accused person is at stake, and a little error or mistake can be fatal. I think where an Accused person, in a murder case, is tried and convicted, wrongly, due to carelessness or mischief of the trial judge, it translates to a judicial murder, which the judge may stand accountable, especially where there is no judicial process to review and correct the error? Such concern or awareness should always play on the mind of a judge, as he sits in judgment over his fellow mortal.? Garba Vs State (2011)14 NWLR (Pt.1266)98 at 124. PER ITA GEORGE MBABA, J.C.A.
SUSPICION CAN NEVER LEAD TO A CONVICTION IN LAW
And by law, suspicion, no matter how strong, cannot lie a conviction. See EMESONYE VS THE STATE (2016) LPELR 40550 CA; ONAFOWOKAN VS STATE (1987) 7 SCNJ 1; OKORO VS STATE (1988) 12 SCNJ 191. This is because, every charge must be proved beyond reasonable doubt and where there is a lingering doubt, the same has to be resolved for the accused person. PER ITA GEORGE MBABA, J.C.A.
MURDER: HOW TO PROVE A CHARGE OF MURDER
To prove a charge of murder, the law requires strict prove by the prosecution of the following:
1) Death of the deceased
2) The death resulted from the act/omission of the accused person
3) The accused person cause the death of the deceased intentionally or with requisite knowledge that death or grievous bodily harm was the probable consequence of his act/omission. See Sule Vs State (2019)19 NWLR (Pt.1169) 33; Nkebisi Vs State (2010) 5 NWLR (Pt.1184) 471; Mbang Vs State (2010) NWLR (Pt.1194)431; Okon Vs State (2014) LPELR ? 24018; Emesonye Vs State (2016) LPELR 40550 CA. PER ITA GEORGE MBABA, J.C.A.
MURDER: HOW TO ESTABLISH A CHARGE OF MURDER
A charge of murder maybe established by:
1) Production of positive and direct eye witness account of the killing, when it occurred. See Agu Vs State (2017) LPELR ? 41664 SC; Udor Vs The State (2014) LPELR ? 23064 (SC); Igabele Vs The State (2006) (2012) LPELR ? 7867 SC. And that is the best evidence.
2) By cogent circumstantial evidence which points, directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred. See Nasiru Vs The State (1999)2 NWLR (Pt.589); (1999) LPELR ? 1945 SC; Chiokwe Vs The State (2005) NWLR (Pt.918)424, Obasi Vs The State (2014) LPELR 24013; Nasiru Vs The State (2017) LPELR ? 43917 CA.
3) By confessional statement of the accused person, adjudged voluntary, and even where it is retracted, the trial Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. Fed. (2012) 2009 LRCN 70 (2012) 32 WRN 1; Blessing Vs FRN (2015) LPELR 24689 SC; Emesonye Vs The State (supra). PER ITA GEORGE MBABA, J.C.A.
COURT: A COURT SHOULD NOT DESCEND INTO THE ARENA
See Ajakaiye Vs The State (supra) which bars the Court from resorting to evidence from its imagination to decide a case. See also Emeto Vs The State (2018) LPELR ? 44990 CA and Suberu Vs State (2010) LPELR 3129 (SC):
A Judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter Fabiyi JSC. See also Egbebu Vs IGP &Ors (2016) LPELR 40224 CA. PER V
EVIDENCE: WITNESSES: HOW MANY WITNESSES CAN A PARTY CALL
It is true that a party is not under any obligation to call a given number of witnesses, or any particular witness, to succeed in his case. But where the prosecution fails to call a vital witness, like an eye witness, in a criminal trial, when one is available, the case is likely to fail. Ugochukwu Ngorka Vs A.G. Imo State (2014) LPELR 22532 (CA); Nwaeze Vs State (1996)2 NWLR (Pt.425)4; Adamu Vs State (2019) LPELR 46902 SC; Alake Vs The State (1992) LPELR 403 SC; State Vs Nnolim (1994)5 NWLR (Pt.345) 394; Smart Vs The State (2016) LPELR ? 40728 (SC). PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: DYING DECLARATION: WHAT IT ENTAILS
I do not also think the trial Court was right to hold that the deceased had made a dying declaration in this case. Section 40 of the Evidence Act, 2011, provides what constitutes a dying declaration, and when the same can apply in a criminal trial. In the case of Sule Vs The State (2014) LPELR ? 24044 CA, this Court held, relying on Akpan Vs The State (1992) NWLR (Pt.248) (SC).
Thus:
?It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die is admissible as a dying declaration. See Akinfe Vs State (1988)3 NWLR (Pt.83) 729; Okokor Vs State (1967) NWLR 189? strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties. PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
FRANCIS UCHE AZUBUIKE Appellant(s)
AND
THE STATE Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Abia State High Court in Charge No.HIN/8C/2006, delivered on 22/5/2018 by Hon. Justice C.U. Okoroafor, whereof Appellant was convicted for offence of murder, together with other accused persons, and sentenced to death, by hanging.
Appellant was arraigned on an information, with two others, for murder, contrary to Section 319(1) of the Criminal Code, Cap 30 Vol. II, Laws of Eastern Nigeria, 1963 (as applicable to Abia State) on 30/5/2013. (See Page 44 of the Records). The charge was that Mr. Azubuike Tom Ehiiriodo, Ngozi Onyekwere and Francis Uche Azubuike, on the 1st day of November, 2005, at Amapu Umuosi in Okpuala Ngwa Judicial Division, murdered Mr. Emeka Okegbugwu. Appellant and each of the other accused had pleaded NOT GUILTY to the charge.
At the end of the trial, and after consideration of the evidence and the addresses of Counsel, the Trial Court found Appellant and the other accused persons guilty and sentenced them to death, by hanging (page 169 of the Records of Appeal).
?Dissatisfied with the decision, Appellant filed
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this Appeal on 14/6/2018, as per pages 171 ? 177 of the Records of Appeal. He raised 7 Grounds of Appeal. Appellant filed brief of arguments on 26/10/18 and formulated 6 issues for the determination of the Appeal, as follows:
1) Whether the evidence of the prosecution witnesses were not substantially contradictory, contradicted and unreliable, rendering them incapable of grounding conviction in the circumstances of this case. (Grounds one and two)
2) Whether the failure of the prosecution to call the wife of the deceased, who was the sole eye witness to the act leading to the charge, was not fatal to the case of the prosecution which should have warranted the acquittal of the appellant. (Ground 3)
3) Whether the learned trial Judge was right to ground his judgment and conviction of the Appellant on speculative, extraneous and unconnected considerations not borne out of evidence placed before the Court. (Ground 4)
4) Whether the learned trial judge was right in holding that the deceased made a dying declaration, and grounded the conviction of the Appellant on same, when there was no strict proof of the actual words used by the deceased
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and there were serious contradictions and ambiguity in the evidence of the prosecution witnesses (Ground 5)
5) Whether the learned trial judge was right by not making use of the statement of the sole eye witness to the act leading to the charge which statement was in the information and proof of evidence and already part of the Records of the lower Court. (Ground 6)
6) Whether the judgment of the lower Court was not against the weight of evidence (Ground 7)
The Respondent filed its Brief on 5/2/19 and distilled only three issues for the determination of the Appeal namely:
1) Whether the offence of murder was proved beyond reasonable doubt?
2) Whether there were contradictions in the case of the prosecution?
3) Whether there is any particular number of witnesses or any particular witness shall in any case be required for the proof of any fact?
The Respondent did not relate the issues to the grounds of Appeal. But Appellant filed a Reply Brief on 4/4/19 to contest the issues raised in the Respondent?s brief.
?Arguing the Appeal on 18/6/19, Appellant?s Counsel, Dr. A.C.B. Agbazure, on issue one, said that by law,
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where there are material contradictions in the evidence of the prosecution witnesses, it is fatal to the case of the prosecution, once such contradictions go to the root of the substance of the case. He relied on the case of Agbo Vs State (2006)5 LRCNCC 86; Yaki Vs State (2009) 7 LRCNCC 36; Sele Vs State (1993)1 SCNJ (Pt.1) 15.
On the contradiction, Counsel said that PW1 had testified that after the deceased was shot, ?He started shouting and ? saying that the accused persons have killed him? and he ran to inform one Umuine Amuta, the Village head? (page 50 of the Records); that the PW1 confirmed that some Villagers then took the deceased to the Police Station who gave them instruction to take him to the General Hospital, but he died on the way to the Hospital.
On the contrary, Counsel said the PW3 in her evidence, said she was called, that the brother had been shot and when she arrived, the deceased told her the 1st and 2nd accused have actualized their threat; she lifted the brother and took him to where the bullets were to be extracted, but the bullet extractor referred them to the Police, while the Police advised
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them to take him to Chinonyerem Hospital.
Counsel said the above two pieces of evidence were contradictory; that none of them saw when the deceased was shot and by who, but they hook-winked the trial Court to believe there was a dying declaration by the deceased; he said that such contradictions are sufficient to raise doubt as to the guilt of the accused. He relied on the cases of Iko Vs State (2002)3 LRCNCCC 11; Ogoala Vs State (1991)2 NWLR (Pt.175) 509.
Counsel also referred us to Exhibit A (the statement of PW1 to the Police, made at the earliest opportunity on 1/11/2005) to point out contractions with his evidence in Court. Counse
